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1 City Council, City of Richmond, Virginia Meeting Transcripts Samuels‐Tyler Noise Ordinance Discussions Contents: Page Date Meeting 01 Timeline Ordinance No. 2009‐236. 02 2010 Jan 19 Public Safety Committee meeting. 10 2010 Feb 22 City Council Formal meeting. Ordinance No. 2011‐119. 26 2011 Jun 27 City Council Informal meeting. 33 2011 Jul 05 Organizational Development Comm. meeting. Note: Portions in parenthesis summarize discussions. Some portions of discussions omitted. Timeline: 2009 Apr 17. Supreme Court of Virginia declares "unreasonably loud" standard in noise ordinances unconstitutional. 2009 May 12. City of Virginia Beach adopts a replacement noise ordinance. (25 days after court decision) 2009 Dec 14. City of Richmond Council introduces a proposed replacement noise ordinance. (8 months after court decision) 2010 Feb 22. Council adopts ordinance. 2010 Apr 14. Citizens cited for violating ordinance. 2010 Nov 30. Court invalidates ordinance 2011 Jun 13. Council introduces proposed ordinance #2. 2011 Jul 25. Council adopts ordinance #2.
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2 =========================================================== Excerpts from Public Safety Committee meeting. January 19, 2010 Ordinance No. 2009‐236. SAMUELS: First of all, this paper was brought about in a most unique way. There was a bar in Virginia Beach that was playing loud music and the police were called. The owner decided that they didn't want to turn down the music. They were issued a citation. They fought it from General District Court all the way up to the Supreme Court of Virginia. Supreme Court of Virginia agreed with them that the way the Virginia Beach ordinance was written the code is unconstitutional and couldn't be enforced. That effectively made the bulk of Virginia's noise ordinances unconstitutional. This happened... late spring, early summer, I believe. Over the next six months the city of Richmond was careful and watched to see what other jurisdictions were doing. How to do this. The attorney for the police actually asked for little bit of time to see where the Commonwealth jurisdictions in general were going to determine the best way to ensure the newly promulgated, a new noise ordinance, that it would stand up to constitutional scrutiny. And that's what you have before you today. To address the specific issues that were brought up today, I'm going to start with how do you enforce this. The noise ordinance as written includes a section that provides a violation of it is a class II misdemeanor. That means that it's a crime punishable by up to six months in jail and a fine of up to $1500, maybe $1000. And the burden of proof would be on the Commonwealth's attorney or the city attorney to show that in fact the noise ordinance was violated beyond a reasonable doubt. In order to make sure that that was something that could be accomplished, we had to take out words such as "objectionable" – anything that was arbitrary – and put in objective, fact specific language. That's why you see the phrase "plainly audible." That's why you see these sorts of words in the new noise ordinance to ensure that you won't have the same problems that you saw in the old noise ordinance. As I flip to it to address the specifics that we've heard today, in order of appearance, Ms. Reardon, subsection 2 of 18, excuse me, of 38 – 31 will read that "it is prohibited to allow noise between the hours of 12 AM and 7 AM that is plainly audible inside the confines of a dwelling unit, house, or apartment of another person." Now I know that won't help you during the daytime hours but provided that their HVAC is working you're gonna have it run both at day and night. And that should resolve that situation. Ms. Nürnberg, I know that you and I exchanged e‐mails earlier this spring on the Stewart Avenue noise next door, excuse me, [unintelligible] you copied me on a bunch of those e‐mails. And to address your situation, if you look at subsection 1, you're going to see that playing any sort of music that is plainly audible inside the confines of a dwelling house of another person or 50 feet or more from the device is not allowed between the hours of 11 and 7 AM. And, Mr. Circle, I think perhaps subsection four might solve your problem that "to played or permit the playing of any radio, stereo, tape player, compact disc player, etc., which is located within a motor vehicle
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3 and is plainly audible from outside the motor vehicle at a distance of 50 feet or more." This does not address the horn. The only horn honking that this has an exception for is to cause an alarm – as in a car alarms when someone is breaking in or ambulances, fire trucks, police that are in emergency mode. That kind of thing is a clear exception to this rule. But this ordinance should address all of those issues. I do want to say this though. We live in a community, especially in the more densely populated areas of the city, where you share a lot of space with your neighbors. And, this is not meant to attack anyone, any age group, or anything else, as far as its enforcement. What it's meant to do is to both respect the property owner’s rights and the property owner’s privacy on both sides with the hopes that people will be able to get along together and understand that when you live in a community you have to take in not only your own desires and wishes but those of your neighbors. (Citizen asked for clarification.) SAMUELS: 11 to 7, 11 PM to 7 AM for your situation. Noise of any kind between the hours of midnight and 7 AM. (Citizen asked how it is enforceable during the day.) SAMUELS: Well, enforceable during the day is a different subject. During the day you're going to have a slightly different issue and I will provided it to you now. (Staff told Samuels where to read.) SAMUELS: "To use, play, or operate between the hours of 7 AM and 11 PM." And then it goes on to list those things which would cause problems. Now I know this isn't... I'm happy to... I know this isn't technically the public comment period. This is just an introduction to the paper. I'm gonna turn it back over to Ms. Trammell and then I'm gonna let her... take over. NEWBILLE: Asked where the sanctions were provided. SAMUELS: Under B of 38 – 31. I'm sorry, it's on page 7. Now of course the police have a couple of options. They could issue a summons. I guess technically they could arrest someone for this. Or they could issue a warning and tell them to turn it down if they have to come back they may be charged. (Citizen comment about HVAC noise.) SAMUELS: And to solve, solve your problem, it just has to run at a time that it's illegal to make this much noise. I think the problem is during the day more noise is expected and it would be more difficult to enforce the ordinance, more difficult to get a conviction, were we to do silence throughout the city 24 hours a day.
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4 (Citizen asked question about enforcement.) SAMUELS: You'd have to ask the police their procedures for enforcing the law but this does provide the penalty, a method with which they can issue citations, and rules under which they can issue them. (Citizen comment about HVAC noise.) TYLER: If your window is wide open, that’s one conversation. If your widow is shut, it’s going to be another. There’s not a mechanical unit sitting on property that can’t be heard. You know. So I think you’ve got to understand that, you know, this is you being reasonable in trying to reduce the noise coming into your house, and I think that's the way this ordinance is written. Windows shut, etc., etc. GRAZIANO: If you have... I'm just thinking when we say “clearly audible”, I have an air conditioning system. I can hear it when it goes on in my house. If my house was real close to my next door neighbor’s house. I just have a regular old air conditioning unit. My neighbor could hear me. TYLER: We want to talk to you about that. GRAZIANO: But my neighbor, if I lived very close to my neighbor, my neighbor would hear it go on. Is that…so that could affect most everybody in the city that lives next to one another. What’s the definition of “clearly audible”? SAMUELS: Plainly audible. TYLER: I think, I think, this is, this is the point of discussion because what, what happens is you have many different locations, central locations, where you can locate your mechanical unit. And, in doing so, you have to be cognizant of the noise that it’s going to generate to the adjacent property owner. And the folks that are installing these things are going to have a responsibility to check that out prior to its installation. In the museum district, for example, many of these units are on roofs. People literally put them on skids and put them on the roofs. And that’s how they handle the situation in a more dense urban area. In my neighborhood, the situation is my air conditioning unit is near my property line and my neighbor has his next to mine and we both hear each other’s. And, you know. It's, it's clear that’s a pairing. We’ve chosen together to put our units and respect that. GRAZIANO: I understand that. But, my question to you is do you sell your house to me… TYLER: Right, and you don’t like you next do neighbor.
5 GRAZIANO: Yeah. TYLER: Then, that’s an issue. [chuckles] Citizen: In our situation, the person moved the unit that was functioning in the back of their house. The person moved the unit so that is wasn’t an issue TYLER: It wasn’t an issue and it became an issue. Citizen: I’m wondering if it helps to make that part of it. I just want to make sure that ours is addressed because we were there, somebody moved in, decided to move the unit because they wanted to add something to the back of their house. TYLER: And, they have two options. One, they can relocate the unit. Or, two, they can put acoustical baffle around the unit to reduce the noise. And those are two things that can clearly be done, but it is up to the property owner to do that. (Citizen asked about parties in the back yard during the day. And noise from parties.) SAMUELS: (read part of proposed ordinance regarding reproduced sound.) Citizen: It’s not just the playing something. It’s young people next me have loud voices. They have fowl language and they sit in the back yard and scream, whether they are playing something or not. They’re screaming and laughing loudly and drinking and I can’t sit on my back deck in peace. SAMUELS: And that’s where the community issue comes in. Because, if we were to craft an ordinance that perfectly addressed each and every issue, we would…the city of Richmond would be entering the code of silence. So we have to be able to make sure that the community gets to have quite enjoyment of their property while still understanding that in areas that are as compact as the Fan or Carver or the Museum district or Randolph that people still are able to enjoy their property. Citizen: Well, they can enjoy their property but I’m not able enjoy mine. SAMUELS: That’s the difficult balance that we are trying to work with. Citizen: I understand that it’s a difficult balance, but in the Fan it's an issue. SAMUELS: It is. It is an issue. (Citizen described the situation with her neighbor.)
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6 SAMUELS: Well, let me give you this recommendation. If that occurs would subsection 2 [unintelligible]? Citizen: But that [unintelligible] 7 AM. SAMUELS: I'm sorry. I'm looking at the wrong.... Oh, I see what you're saying. (Citizen: There's nothing, in number two on page 6... I'd like to see something added there during the day because this is a problem... Not just me but... ) SAMUELS: It is. I think the problem that you're going to have is that's also going to impact the abilities of... Well, [unintelligible] then you do a problem. But there are some noises that living in the city you have to accept. Citizen: Reasonable noise. How would you like to have 30 or 40 kids in the yard next to you that you share a fence with? SAMUELS: I’ve got two party walls. I know exactly what you mean. Citizen: Let me ask the city attorney, why is it not possible, or is it possible to address that in some form. City Attorney: As far as the specifics, I’ll leave it to members of Council. (Citizen asked about controlling loud car stereos.) SAMUELS: As long as it's audible from at least 50 feet the police can do something about it. They can give them, they can give him, they can give them a summons and the judge can give them up to six months in jail and 500... The police have to be able to have heard it from 50 feet away. (Citizen asked about what she can do.) SAMUELS: Well, I guess the argument is you could run down, you could get his license plate number, run down to the magistrate' s office and swear out a warrant. But for the time that you're going to be at the stoplight next to him, I guess the question is is that worth your time. (Citizen elaborated on the problem.) SAMUELS: And that would be an enforcement issue for the police to decide if they want to put a car where this is occurring regularly to pull cars over [unintelligible].
7 TRAMMELL: (Asked whether the ordinance addresses commercial machine noise in evening that affects residential area.) SAMUELS: Well, it depends on what they are doing there. This is not a panacea. This replaces the unconstitutional language in the old ordinance. But, what it does do is lay out the most common thing that cause real problems within the city of Richmond. For example in yours you might could look in subsection 9 or 10, if it's, depending on what kind of production they are running. And that would be something for the police to decide if it's within one of these categories. TRAMMELL: (Described the situation.) Citizen: I forgot to ask. Regarding police enforcement, do you think that the high fines, including six months potential jail, will make the police hesitant to enforce this? Police: Citizen: 38‐31(a)(1), wouldn’t that apply to your situation: “To use, operate or play between hours of 7:00 a.m. and 11:00 p.m. any … machine or device capable of producing or reproducing sound…” SAMUELS: That’s an excellent point. That’s an excellent point. It sounds like it would. (Citizen asked if the time restriction only applies to dwellings.) SAMUELS: Let me make sure I understand your question. Noise from dwellings, you're wondering if there are different time restrictions than noise from vehicles. Between 7 AM and 11 PM is what's covered under the first section and then the last sentence there says and then between the hours 11 PM and 7 AM only the operator of the device should be able to hear the device. (Citizen elaborated on the problem.) SAMUELS: Oh, for cars it's 24 hours a day. GRAZIANO: When you say “plainly audible”, would you define that for me. SAMUELS: Yes, Plainly audible means able to be heard by the person either at the prescribed distance or within the house of another in such a manner that it is clear what the noise is. Police Attorney: Police, we are very satisfied for the most part with this. As Councilman Samuels had mentioned we were e‐mailing back and forth in regards to this. I do want to address some questions... (Mentioned noise from vehicles, penalties) ...38‐31(a)(5)...a proposed
8 amendment from police would be to change this to 350 feet for the exhaust with regards to motorcycles... Aside from that we fully endorse it... I do see the plainly audible issue. I don’t know, if we don’t define it, if it's necessarily clear. We may want to define it.... (Discussion between Trammell and police regarding responding to complaints.) TRAMMELL: ...Do we know how many tickets have been written for the noise ordinance? Police Attorney: I have that information. I can give you how many summons were issued, how many calls we responded to, and I can email that to each of you. (Police described problems with apprehending offenders.) (Discussed problem with motorcycles.) Police Official:. ... I think and I hate to say it that way but that's a civility issue and a neighbor issue. I'm not sure that the police can solve every issue... (Citizen continued discussing motorcycle problem.) Citizen: ...I have asked for how many times the police have actually enforced the noise ordinance within the city of Richmond and I have never been given that information. (Discussion of problem, Sector 412) Police Attorney: I am going to give you my card this evening and you can contact me and we do the responses as far as requests. I’m familiar with this but once you contact us we’ll get you that information. (More discussion about motorcycles.) SAMUELS: Let me make this recommendation. Because we are currently operating in the city without a necessary or appreciated tool in the police officer’s tool belt, because we are not operating in the city with a way to help people enjoy their time in their home, outside their homes, I recommend that we forward this to council with a recommendation for approval either as it is or with the change to 350 feet for the motorcycle and then we look and see how is it behaving. Is this ordinance acting as we expected or is something happening that’s not working. Let’s put it in place to give police back this necessary tool and then amend it if we need to. I will co‐patron an amendment with the members having trouble if it’s something that is clearly necessary. But, I recommend that we move it forward to council as it is for now.
9 TYLER: I want to follow up on that. If we make any amendments to this paper, which we are contemplating this one of 350, is that a material change that will force us to have to continue the paper. City Attorney: If there are any amendments to this paper the amendments will be considered by full council at its next meeting and they would vote on it two meetings from now. TYLER: Alright, well then, my suggestion would be, if I may Mr. Samuels, is suggest that we bring this paper forward knowing that we would amend it after we see how it works so that we would get, so that we get this in place realizing that it may have a flaw in it. I’m of the philosophy that I don’t want to wait another month on this. SAMUELS: I think that makes good sense. GRAZIANO: Madame chair, I’d just like to say that if the police department owns eight Harleys and we pass an ordinance that says to the police you can’t drive those Harley’s, I think that's a problem. (Discussion about necessity for an amendment.) SAMUELS: The only question I have. Mr. Lukanuski. Let me make sure I understand. Changing the distance would be considered for would not be considered a material change. Lukanuski: It would be. (Discussion about preparing amendment and process.) SAMUELS:... It would have to be either Ms. Newbille's or Ms. Trammell's motion. [(Motion to amend and insert 350 feet for motorcycles.]
10 =========================================================== Excerpts from City Council Formal meeting. February 22, 2010 Ordinance No. 2009‐236. [Remarks prior to vote.] CONNER: I am a co‐patron of this paper and this paper I support. I know in my district I’ve got a situation that on Saturdays and Sundays, Fridays evenings, there’s music coming from a [unintelligible] Midlothian turnpike‐‐‐and I’ve always tried to get the police to interject and this is so bad that people five blocks away can’t be out in their back yard because they can’t hear their own conversation over this noise. So, [unintelligible] to instruct our police department, who ever, to get this problem down to a level that is livable. So, I for one do appreciate this ordinance and will support it. JEWELL: Yes. Mr. Taylor made some good points about the noise ordinance. It’s bad or sick, but currently because of the Supreme Court ruling, the Virginia Beach case, we have no current noise ordinance. And, while we recognize that we can do a better job and thanks to the good work of Mr. Charles Samuels, I expect that that will occur soon. But we have to have something in place in the way of law against noise. We’ve got all kinds of noise. We can’t forget that we live in a city. We don’t live out in the rural area. We’re not in suburbia. We are a city and we are going to have noises. [unintelligible] expect reasonable noise. What is reasonable? What is normal? The hours of the day make life even more complicated when you try to craft a law of this nature. We have people who work at night and sleep in the day. They would rather it be quite. You’ve got dogs and dogs that do pretty fine at night at the foot of the bed but you let them out in the day and they go crazy. Some of us live near commercial sites. You’d think you were next to gasoline alley, with engines ramped up and blasting, motorcycles being repaired, and all that crazy doings during the day, let alone at night. It is a complicated thing to come up with something as subjective as “what is noise”. But, we have to have something. We are going to probably vote this up. And then we go to work to fix it. And, I think we will get gentlemen’s agreement that all of us would want to get any input from the public that we can have as we try to come up with a sensible balanced noise ordinance. HILBERT: I am also a co‐patron of this ordinance, but I have to say that my colleague, Charles Samuels, did the yeoman’s work on this and I thank you, Charles, for that. This is not, as Mr. Jewell indicated, a very easy issue, but it is something that we need in place. And, this is true that you can’t legislate morality nor can you legislate consideration for others, but I think this is, bottom line, a plea for consideration of your neighbors. And often when crafting legislation, this is certainly not science, it can be hard. And I think this is a perfect instance where you can say that we cannot make the perfect the enemy of the good and
11 this is a good paper and we will continue to work to try and make it better. But in the absence of an ordinance, I feel it’s an obligation of this council to give the people an ordinance now and we can work to make it better in the future. And we welcome any input from the public as we have received this evening. NEWBILLE: I am also a patron on this paper. I am 100% in favor of a good noise ordinance that allows for the enjoyment of our city by all of our citizens in peace and tranquility that certainly comes as part of being a resident here. At the same time I want to be vigilant that whatever you pass is constitutional, that it minimizes unintentional consequences. I have a lot of home renovation that goes on in my district, as many others. Some of those hours during the summer, we have daylight and so people would be inclined to be working and they might very well be in violation of our ordinance. But, what I understand from my colleague and I think I am for it, is that we will after passing this ordinance, immediately he will convene a task group that will work to do the further refinement necessary to make sure that this is the kind of ordinance that we all want [unintelligible]. I thank him for it. TRAMMELL: First of all I acknowledge Charles Samuels for researching all of this and for coming forward with this noise ordinance, because I know for years I have put up with loud music, dogs barking all night long, all day long. And call the police, tell them to shut up, when they go away, the dogs bark again, the music goes so loud that the plates and your pictures, well your walls start vibrating and then they finally start falling down because the music is so loud. I have somebody in my district that I would like to thank. She asked my not to mention her name. She went out there, one day, and got 75 names from the 3rd district, 5th district, 6th district, 7th district, 8th district, and 9th district. And she was hoping that the paper might be continued so that she could get about three to four hundred names. That is what she was going for. But, anyway, I thank her for doing this. And also, since I have been sitting here tonight, I’ve gotten several emails from people from the 8th district saying please pass this. I even had someone from Brook Garden come down here tonight and spoke in favor of the paper because in their neighborhood they had little signs that were put up about the noise ordinance. They had it on every block. And, I’d like to have that in, I guess, in my neighborhood. Because it says it will be enforced. She has, it has the noise ordinance, everything, the code, all that, on here. And again, that’s in Brook Garden subdivision. So again, I’d like to thank my colleague, Charles Samuels, and I’m glad I’m a co‐patron on the paper and to say thank you for all that you did. And, I think this is in the right direction. SAMUELS: First of all, I want to thank my colleagues on city council for their support. Right now, [unintelligible] in these things. I also want to thank all the members of the second district that have written me, asked me where the status is of the noise ordinance, when can we come down and support it. I appreciate all of your support. Since April, 2009,
12 our noise ordinance in the city of Richmond has been unconstitutional and unenforceable. After speaking with families in the second district, I decided to sponsor this ordinance to bring our noise pollution laws into compliance with the state law. In crafting this ordinance, I also studied many revisions to noise ordinances throughout the commonwealth and the nation. I looked at New Jersey to Illinois, throughout all of Virginia. And I found one that I believe, based on our research, will bring our noise ordinance into compliance with the court’s ruling which invalidated our old noise ordinance. But, let me be clear. This is not going to fix every problem involving noise in our city. It does correct the problems laid out in the Virginia Supreme Court’s decision which invalidated [unintelligible] noise ordinance. I know that some are concerned that it may be over broad. My argument would be simply this: almost nothing has changed from the old noise ordinance to the new noise ordinance. The difference is a hundred and fifty extra feet regarding motorcycles and a new exemption for emergency vehicles. Some are concerned...excuse me. There is nothing here that you couldn’t have been cited for in the past that that you can’t have them cited for as well. Some are concerned that a class 2 misdemeanor is too harsh a punishment. By way of example, Henrico to our north, east, and west is a class 1 misdemeanor, which is up to 12 months in jail and a fine of $2,500. Chesterfield previously was a criminal violation as well. It is now a minimum fine of $100, it’s a maximum fine of $500 plus court costs. For folks who are concerned about the status of having a class 2 misdemeanor as the punishment, I would remind them that that is the maximum. There is no law that says that has to be the punishment. We saw a judge and a prosecutor in here today. I work with them on a daily basis. I have nothing but respect for both the gentlemen. The judges and the prosecutors in the city of Richmond are intelligent folks who work hard to insure that justice is served. In the greater Richmond area, the average penalty for a noise ordinance violation is a $25 fine. However, I do believe that there should be the ability… The judges and commonwealths attorneys should have the ability to ask for a higher or different penalties for repeat offenders and for egregious violations of the noise ordinance. I also believe that the citizens need relief now. It’s taken us ten months to get to here. In the last two years there have been over 16,000 calls for service regarding noise ordinance … ah … noise complaints. Of those 16,000, approximately, just about 200 summonses a year have been issued. The reason is this is a situation where if there is a problem and folks can’t work it out in a neighborly community‐minded spirit and the police do have to come, often times what’s required is simple please turn it down. And, when the officer asks, in a lot of cases, not in every case, but in a lot of cases, that’s all it takes. And that is why you see the great disparity between calls for service and the number of tickets issued. But I also want folks to know that I have heard their concerns about how to make this noise ordinance greater. And Mr. Jewell hit the nail right on the head. Starting tomorrow I’m going to be working to form a work group to address these concerns. This is a group that at a minimum will consist of representatives of the commonwealth attorney’s office, the city
13 attorney’s office, the mayor’s office, the Richmond police department, VCU, and someone from the criminal defense bar who regularly practices criminal law from the defense side of the bar here in town. Again, I want to thank everybody for support on this. I look forward to making this ordinance even better in the coming months. And, I especially want to thank the citizens of the second district for all the time and effort they have put in to support this specific ordinance. I ask for a vote to pass this tonight. [GRAZIANO: (no comments)] [ROBERTSON: (no comments)] [TYLER: (no comments)] [Ordinance adopted 9/0, February 22, 2010. 10 months after court decision.]
14 ======================================================= April 4, 2010. Richmond police department cited a band for violating the noise ordinance. The band chose to challenge the ordinance in court. October 27, 2010.The Richmond commonwealth's attorney was quoted as telling the court the "ordinance is bad and needs to be stricken." November 30, 2010. Richmond General District Court declares city noise ordinance unconstitutional. City Council does not appeal. 6 months later: June 13, 2011. City Council introduced a proposed replacement noise ordinance. ======================================================= Excerpts from Public Safety Committee meeting. June 20, 2011 Ordinance No. 2011‐119. SAMUELS: As you all know, Richmond needs a noise ordinance, a sound control ordinance, and part of the agreement last year was that we needed something in place, a placeholder, that as soon as that was put in place I would convene a small work group to start working on something that would really just revamp the entirety of the city's noise ordinance. The noise ordinance as it stood prior to the Tanner v. City of Virginia Beach ordinance had been around at least since around 1993. I believe it goes back even further. I know the city has had a noise ordinance since 30 to 40 years after the turn‐of‐the‐century. So it's important that we keep this, that we find something that would work for everybody. And, as you all know, you can please some of the people all the time, and other people none of the time. But, you can't please everybody all the time. And with that knowledge, a dedicated group went to work trying to see how other cities, towns, states have addressed noise and sound in their districts. We started with over eighty different ordinance. We reduced it down to thirty, reviewed those in‐depth‐‐went through‐‐I talk to folks from all walks of life about this, including the attorney who argued the Tanner case in front of this Supreme Court. Got his advice on some basics and continued to work through the problems. And what you see here is an ordinance that addresses all the major issues in Tanner as well as the concerns about the plainly audible standard. As you all know "unreasonably loud" or a basic understanding of "hey, that's too loud" is not constitutionally sound. It won't stand in courts. So, we couldn't use that. We got to looking at what is isn't arbitrary. What is a definite number that people can look at and say I know if I go above this I'm violating the sound ordinance; if I'm below it I'm not. And we looked at a lot of different ways in picking that number. Like I said, we reviewed numerous ordinances from around the state, around the country, and determined
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15 that there was a couple of different approaches. One was to use just "plainly audible." if I can hear it, and I can make it out, it's plainly audible, and it's illegal. We also looked at an idea where you take a baseline and then had X number of decibels above that to determine whether or not it would be a violation. I can't remember, I think it's Miami, but I'm not sure. They have gone around and literally taken readings, citywide, throughout the city, to determine how loud the normal amount of volume is on that street and then if you're 5 to 10 dB over that, you're in violation of the noise ordinance. While that has a certain appeal because it does deal with each section of the city differently, the work group really came to the consideration, or the decision, that that puts an awful lot of initial strain on police and planning that somebody is literally going to have to go out with a sound level meter on every block of the city. That's going to take an inordinate amount of time to get baselines. Of course that means that it's just a snapshot in time; that it's not necessarily the standard volume in that area but simply when the person went out to take the reading. And so we look to see what other options we had and we found that most decibel, most of these municipalities that use a decibel rating system did so based on a fixed number. Boston, Massachusetts: 50 dB, which is lower than Richmond, Virginia's proposed standard. Austin, Texas: 80 dB I believe during the day, which is 5 dB higher than Richmond's standard during the day for exterior events. And so we tried to find something that was reasonable, something that wouldn't cause most people a lot of heartache about killing noise in the city but would also still be enforceable, still have teeth to it, and would still make sure that people who knew when they were or were not violating the noise ordinance. About a month and a half ago, I sent out an e‐mail, posted on a lot of the blogs, distributed through neighborhood associations, that laid out my proposed ordinance. I received some feedback, both positive and negative, about that ordinance, reviewed those and incorporated them as I could into the ordinance if we thought they were appropriate to do so. And you'll see the ordinance before you tonight is different than the one that was circulated a month and a half ago. That's because we did listen to what people had to say about the original proposal. This noise ordinance sets a couple of standards. first of all it defines what is illegal. A nighttime, in residential districts anything over 55 dB is a violation on the interior of your house; 65 dB outside. During the day, 65 dB, excuse me, during the night it's 65 dB outside, 75 dB during the day outside your abode. And we did that on purpose because we wanted to make sure that with whatever type of building materials you had, we knew there would be some dampening of the noises as it went from outside to inside. And it didn't seem fair that I could stand on my back deck with my neighbors as close as Mr. Jewell is to me and say he was in violation when he could be at the same time hollering and screaming his head off, I could be upstairs on the other side of my house and just barely have it tip the scale at 55 dB and it would still be a violation. So, we wanted to give some leeway to folks who are outside enjoying the evening or enjoying the day.
16 Of course, this exempts some of the normal things you would expect‐‐trash clean‐up after 7 AM, those kinds of things. And, I think that something that a lot of citizens, almost more than anything else, had to say is that they were tired of the 4 and 5 AM trash pickups. This resolves that issue fairly well. We also wanted to make sure that we were cognizant of how the noise was going to be measured. The state, the Department of General Services, has been required by state law to develop standards for the use of decibel meters in this procedure. And the police have been instructed in this ordinance to promulgate standards that they will be using for the decibel meters that are, that they will purchase. Those will of course have to comply with state law. There is a very definite line that we are going to have to use, to meet, in order to have a decibel meter reading introduced into law. Take a sidestep for a second. I believe it was 2008, 8 to 9 thousand calls for service regarding noise violations. Of those, about 500 citations, 570 citations. So what we're talking about is a very limited number of these every get further than the police knocking on a door saying there's been a complaint, you guys need to turn it down. And that's what the police standard procedure is‐‐to made sure the community is a nice happy place to live. l always encourage folks when I speak to them, to first attempt to go over and asked the neighbor, asked the person that you think is in violation of this ordinance to be cognizant of the fact that we live in a community and we live in a close community. I literally share, well there's two bricks separating my house from the house next door to me. We're a party wall and, you know, we understand that and we chose to live there and we accept it. But we also want to make sure that we're cognizant of each other's ability to enjoy our own home. This is not citywide. It affects residential districts R and RO. And for some folks in the community that's a good thing. It means the business districts, entertainment areas, will be exempt. For other folks it's a very bad thing. It means that places that are zoned, that are residences in B or business zoning will not have this able to be enforced. And that's something that the council people that have those areas are going to have to look very hard at in this proposed ordinance to make sure that's something they're okay with. I would anticipate they won't be, but it's something that they need to talk about with their constituents to make sure that they're on the same page. We asked a lot of people to assist with this. There was a representative from the musicians union. We had an audiologist come in and talk to us. We had criminal defense attorneys, college representatives, Virginia Municipal League, Commonwealth's Attorney's office, VCU. The mayor's chief policy advisor, David Hicks, served on this work group. And it did a great job working through some very difficult issues, not only on how to measure noise, but on the very real First Amendment issues that we had to address with an ordinance like this. And, I want to thank them for their time. Some key feature include punishment. In the past it has simply been a class II, or class I, misdemeanor and that was that. Now, the average fine in the city or in the county was about $25. That was it. However, it was still listed as a class I misdemeanor. This changes that and creates a graduated scale that works its way up depending on the
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17 number of citations issued to a person within a 12 month period of time. The first time it's just a fine. Second time, I believe it's just a fine. The third time you're looking at the possibility of actual jail time. And we reduced it to a class II misdemeanor. Those are some things that really came from the community and I want to thank everybody who has written in about this. The only other thing I want to talk about is the measurements. For example, I just had a child. My son can scream, right now, as a high as 109 dB. And I thought to myself, "that's loud." So, I wanted to see what we could do about it. I took my little decibel meter that I bought from RadioShack, turned it on, took it outside (and my front yard is only about 6 to 10 feet deep), stood on the sidewalk in front of my house. My wife opened up the upstairs bedroom window on the front of our house, the screen is in, she holds the child in her arms, she kind of looks down out the window. One hundred and ten on the decibel meter but at my, down on the street, it didn't register. My decibel meter registers from 50 up. There is a lot of concerns about how things get measured. These are not measured at the source. Right now, I'm talking at about 68 dB, at the source. However, Mr. Hilbert, who was talking a few minutes ago about bars and guns and taxicabs and whatnot, registered 61. Only 3 feet away. Ms. Trammell has peaked, at only this short distance, at 59 dB. When you consider the fact that there will be on interior measurements on single‐family home the situation that there is either brick, or wood, potentially even, in some of the newer houses, not the old house built, insulation instead of just brick and plaster. That's gonna have a huge impact on how noise travels and how sound reaches you. And I think that's something that I really, really want to stress. This is not measured at the source. This is measured from a distance. Now, in addition to that we looked at what's going to happen in multi‐family homes because there isn't the same division or even several feet as there may have been. I'd wager that Ms. Graziano's house probably has a solid 20 to 40 feet between her and the next house, if not more. Best I got is about a two‐foot space on one side of my house. And so we wanted to make sure that in multi‐family homes this was not going to be an unreasonable burden. And so we backed it up even more. The noise can't be measured at the wall. It can't be measured at the ceiling. It can't be measured at the floor. Wherever the offending sound is coming from, it has to be measured four feet back from that source. And that's something that we considered and look at and saw in several of the ordinances‐‐ that we had to back up some. Four feet was the standard from the actual source of the noise or the closest wall from, to the source of the noise, to make sure in a multi‐family situation that you were still cognizant of the fact that there was other people living immediately around you. I'm very excited about this. Folks have put a lot of time and effort into it. I am anxious to watch this ordinance go through the legislative process. I look forward to receiving more comments from everybody. I thank everybody who's here to comment one way or the other for coming out for this and I look forward to hearing from you.
18 JEWELL: I followed this man step‐by‐step right down the garden path to be ruled unconstitutional. SAMUELS: I'm also accepting co‐patrons. JEWELL: I just got it. So, I'm going to read this one this time. (Hilbert asked about exception for air conditioning unit outside of house.) SAMUELS: There is no exception to air conditioners per se. The exceptions are listed fairly clearly in section 38‐36. Most of them revolve around emergencies, work in yards, construction, those kinds of things. However, again, you have to be not from where the air conditioner is but from your, on the exterior of your property line or the interior of your house. How loud it is. (Hilbert not clear.) SAMUELS: If you look at, it's page 12 of the hand‐out from today, section 38‐38, that's for single‐family, which is a substantial portion of your district. (Hilbert still not clear.) SAMUELS: It is 65 during the day on the inside of the house, 75 during the day on the outside. (Hilbert asked about exception or permit for ice‐cream trucks trying to get attention inside homes.) SAMUELS: Well, there are no indication that on the inside of your house that's going to go over 65 decibels during the day. I tell you one went down Hanover the other day, about a half‐a‐block from my house. Outside it registered 55. I was half‐a‐block away. Inside, it didn't register. (Hilbert asked about restrictions on vibration.) SAMUELS: Sound is defined in the ordinance. (Graziano asked about exception for generators.) SAMUELS: That's up to the neighbors. We can always put an exception in. I'm not married to these exceptions. I want to make sure that First Amendment requirements...other than that... If there are no other questions from the committee, I'd love to get some public comments. There is a lot of people here that have waited to talk about it.
19 (Hilbert asked about section 38‐58.) (Graziano asked about trash pick‐up before 7am.) SAMUELS: No, but it exempt the noise that trash trucks cause, but they do go over 65 and 75 decibels and it exempts them in the daytime hours and daytime hours is defined as 7am to 9pm. (Graziano is still concerned.) SAMUELS: That's the way it had been done quite some time prior to the new old noise ordinance. (Graziano is still concerned.) (Jewell mentions trash pick‐up at 4:45am) SAMUELS: We got public works here. Anybody want to take a whack at that? (Public works speaker.) SAMUELS: Can I ask you a question? Anybody from the administration contact you all about this noise ordinance over the last ten months? .... The reason I ask is that we had administration at almost every meeting and never told that there was any concerns from public utilities or public works. I'm happy to work with you guys. I just wish they had told us about this issue sooner. .... That's disappointing. (Public works speaker mentions more concerns.) SAMUELS: I'm sorry... that last one was you need to pick up trash between 10pm and 6am? .... Can you tell me where the basket routes are? (Answer) In the financial area? (Answer) So, it's not a residential district? (Answer) How many R and RO properties are there? I thought those were all either business or industrial or office. There's no R or RO zones downtown, are there? (Answer) Zoned residential or where people live? (Answer) Well now, in the Fan you pick up during the day. You guys don't close lanes there. (Answer) It is in the day. You guys don't close lanes. [unintelligible] (Public works speaker mentions 6am trash pick‐up.) SAMUELS: I'll...let me write that one down. (Public works speaker mentions grounds maintenance.) SAMUELS: And you'll check to make sure that's in a residential district also? (Answer) So, you're confident that that is in residential districts.
20 (Public works speaker mentions nighttime street cleaning. ) SAMUELS: Where do you guys do that?.... Where in the city do you do nighttime street cleaning? (Answer) But not zoned R or RO? (Public works speaker mentions contract work. ) (Public works speaker mentions National Guard work start time.) SAMUELS: We will definitely have to address that. What I would encourage that you guys do is talk to David Hicks. He was at the meetings and help draft this. And, as the chief policy analysis (sic) for the mayor, I think he needs to be the one to help you guys work through whether or not he got these covered in here or whether or not he needs to come back and explain that, somehow, he didn't quite get to these. And we may need to address those in this ordinance. But, I think the first thing you gotta do is talk him and get him to come to me about it. (Public utilities speaker mentions off‐peak utility work.) SAMUELS: At one point that was in there but the committee was concerned about exempting the city from its own ordinance. Doesn't seem quite fair. What I'll do is, I'll tell you the same thing. Have him call me. Maybe he just didn't get the word out to you guys in time for you all for the last few months to get these concerns together. But, yeah...or even in the last two weeks. Maybe he just didn't get it over to you guys in time. Have him give me a call. Be happy to talk to him and see if we can't resolve this. (Hilbert asked if city employee would be charged with violation.) SAMUELS: It's the person who causes or...that, uh, causes the noise. So, if you're the one who's doing the ordering, you be the one who got charged. (Hilbert unclear; mentions possibility of city exemption "policy.") SAMUELS: I think we're getting involved in some details. It says "anybody who causes or, uh,... no person...well...to create or otherwise cause any source." So, its, anybody that causes or...starts the implementation of whatever needs to happen. But, at the end of the day, I mean, DPU, DPW concerns are valid. I'll talk to David about them once they get with him and he contacts me. I've worked with him on this for ten months. I don't know how to say it nice, I'm really disappointed that this is coming to me at Public Safety when he could have come to me at any point after talking with you guys about it. It's not your fault at all. Valid concerns. Thank you for bringing them. Please pass along to him my comments.
21 (Jewell asks about question about city contract work.) SAMUELS: This is only valid in R and RO. (Public works speaker) SAMUELS: Have you guys measured the noise from any of the homes surrounding...? (Answer) Only just found out about it. Unbelievable. Not about you guys. Not about you guys. (Unidentified speaker caught on recording: ...stop talking about it.... ) SAMUELS: Mr. Jewell, let me make a recommendation. I agree to talk with them about this. I agree to work with you, [unintelligible], to see what we can do about it. Because so many of the public are here, that, frankly, aren't getting paid to be here, let's let them, give them an opportunity to say their comments about it and move off of DPU, DPW. PUBLIC COMMENT (Speaker: Wants higher decibel limits. Mentioned a list of noise sources including a baby crying.) SAMUELS: Except you had to permit the baby to do it. And I don't think there's a judge that's going to find that you aren't able to permit a baby to cry ... permit a baby not to cry. (Speaker: Notes lack of higher decibel limits on Thursday, Friday, Saturday evenings. Notes problem of business needing to operate near residences. Notes problem of high density residential area decibel limits.) SAMUELS: But, can you hear it at a decibel level that would violate the ordinance?....Right now, your volume is 64 decibels. It wouldn't violate the ordinance.... If you could hear this volume at night, in your bedroom, from someone else, would that be OK with you? (Speaker: Concerned that city will use ordinance to punish nightlife businesses.) (Speaker: Concerned about excessive restrictions on festivals, street preachers, protests, laughter, free speech.) SAMUELS: Busking is constitutionally protected. So that, of course, wouldn't come into this ordinance. Just so you know. .... Busking is constitutionally protected. (Speaker: Noise level in ordinance is not quiet enough.) (Speaker: City needs an ordinance.)
22 (Speaker: Noted that ordinance description applies regulations to entire city.) SAMUELS: All that means is you can't issue a citation to somebody in Henrico county. (Speaker: Ordinance does not allow amplified sound for free speech. Does not provide for sound on public property.) (Speaker: Downtown residents are being discriminated against. Wants active nightlife, but some nightlife spots are too loud. Ordinance should apply downtown.) SAMUELS: Thank you so much for that. Originally this was intended to cover everything. I lost that argument in the work group. I'm happy to work with Ms. Robertson and any other council member to have [unintelligible] to address this issue. I hear what you are saying. JEWELL: (Speaker: Amplified sound is disturbing. Disappointed that B‐4 zoning is not included.) SAMUELS: I was wrong about that. There is a .... The very last sentence of that portion saying for multi‐family is regardless of the zoning. So you are included....Yep, and I'm sorry. I mis,,,, I didn't misspoke (sic). I said the dog‐gone wrong thing. .... I'll talk to her as well. (Speaker: Definition of daytime should be changed. Should end earlier.) (Speaker: [unintelligible] ) GRAZIANO: (Speaker: Amplified bass is a problem.) (Speaker: [unintelligible] ) (Speaker: Ordinance should protect single‐family dwellings in business districts.) SAMUELS: We asked the administration about that. They reported to us there were none in the city that were single‐family residences in business zones....I'll, if you give me your information. You've emailed me in the past, I think. I'll email you back and we'll figure out whether or not you're really zoned B or not. Because I was informed there was none in the city by the administration. DISCUSSION
23 (Hilbert asked about excessive complaints.) Samuels?: If I may suggest, it would be handled the same way that any other... you can speak on this better than I can.... (Staff.) SAMUELS: So, if somebody calls....somebody calls the police and says Charles Samuels is sledge‐hammering the wall between his house and the next house. And, the police come out and they say, well, nothing is happening. The next night they get the same call. That would eventually lead to that person having a very difficult conversation with the police. Same if they said that, you know, you were, I don't know, punching windows out of cars down the street and they called every night saying that. Whatever the underlying complaint is, it's still a nuisance call. (Hilbert not clear.) Staff: ...there's going to be some officer discretion... (Hilbert asked about people charged for making frivolous complaints.) (Staff) (Hilbert) (Jewell) (Staff) (Jewell wants something in ordinance to prevent excessive complaints. ) SAMUELS: It's already addressed in the code through the other ordinances. If we had to do that, that would mean that, like, for the assault and battery code section, we would have to include something, the playing baseball in the alley code section, we would have to include that same issue. The police already have that tool to address frivolous phone calls, frivolous complaints, false reports to a police officer, et cetera. So we don't need to put that in every single criminal ordinance in the city. (Citizen asked if city needed a law with specific decibel levels. ) SAMUELS: I personally like the unreasonably loud standard, but the Supreme Court didn't. So, we're stuck with what we've got. (Trammell asked about making complaints and retaliation. ) (Staff)
24 (Trammell asked about number of meters to be available. ) SAMUELS: The state has been instructed by the Virginia code to promulgate standards for any sound level meter that any jurisdictional, police force, sheriff, could use. That will allow those decibel readings to be introduced in court as the evidence that it is or is not in violation. So, the Department of General Services was tasked with that. They're going to come up, or they have come up, with promulgation, uh, promulgated rules about what kind of requirements the sound level meters will require. In our ordinance we've instructed the police chief to follow and come with his recommendations or [unintelligible] that meet the standard. And, so, it will fall in line with the local and state law. (Trammell questioned number of meters per precinct. ) SAMUELS: ...how many the administration is willing to buy. (Staff) SAMUELS: It's completely up to... the administration could buy one for every officer. They could buy one for every precinct. They could buy one for every sector. As many as there are snowflakes, there are options for the administration on how to enforce this legislation. But, they were with us hand‐in‐hand the entire way. (Trammell questioned number of meters needed. ) (Staff) SAMUELS: And that priority's been there....That's been the way it's been for.... (Trammell) SAMUELS: That's up to the mayor. It's up to the mayor how to prioritize it. He's got, he and the administration have to decide how important this is. (Trammell not satisfied with answer.) SAMUELS: All city council can do is promulgate legislation. Once we've put the legislation out there and made it law, it's completely up to the administration to enforce it. (Jewell) (Trammell critical of mayor about noise ordinance signs only in his neighborhood.)
25 SAMUELS: But that's...We're getting away from whether or not.... (Trammell disagrees.) SAMUELS: I think it's the same priority for the police regardless of what area of the city it's in. (Staff) SAMUELS: I was informed by the administration they were planning on purchasing twenty. (Staff) (Trammell) SAMUELS: I hear you loud and clear SAMUELS: Well, I'd like to see it move forward with approval to council, but unfortunately, I'm not on this committee, so I couldn't make a motion. (Jewell wants to study comments. Motion to continue to Organizational Development.) (Graziano thinks there may not be time on the agenda.) (Jewell suggests Governmental Operations committee on Thursday.) (Graziano discusses time‐line.) SAMUELS: I have no objection to it. My goal was to introduce a noise ordinance to council for consideration that met the needs of the vast majority of citizens. It is now up to council as a whole to figure out what we're going to do with what's.... (Graziano asked about 9pm seven days a week.) SAMUELS: Constitutionally, you are allowed to make a reasonable time, place and manner restrictions. I do not know, off the top of my head, what impact alternating the time and place and manner throughout the week would do to the ordinance as far the constitutionality... Our goal was to get the thing to pass constitutional mustard. I mean, muster. We have gone over this and over this, trying to get us to a place where we could feel comfortable. There is a litany of cases that are involved in this. My favorite is the New York v Rock Against Racism, or Ward v Rock Against Racism case. But, we wanted to make sure that we met the criteria of time, manner and place restrictions in such a way that it would pass constitutional muster regardless of those restrictions. I am unfortunately going to have to leave it up to the city attorneys to tell us
26 if changing...well... I will say that reasonably it will be difficult to keep track. Well it's Thursdays in here until 6:30, but its Fridays it can go to 9. [unintelligible] (Graziano asked about going to 10pm.) (Hilbert, Jewell, Trammell, Graziano and staff discuss what to do.) [Jewell moves to send ordinance to council with no recommendation; second; adopted 3/0.] =========================================================== Excerpts from City Council Informal meeting. June 27, 2011 Ordinance No. 2011‐119. HILBERT: So we can get this right here, I like to go back to the noise ordinance. The only change here that's being proposed is 9 o'clock to 10 o'clock? GRAZIANO: Correct. HILBERT: [unintelligible] a letter from a constituent of mine in which I agree with his assessment that we ought to look at 11 o'clock. Can we... And I do appreciate the patron of the paper has let me know that he is opposed to changing it from 10 o'clock. SAMUELS: Two things. Number one, the first six pages of the amended paper you have in front of you for the noise ordinance are repealed in the current ordinance. So if you look at anything on the first six pages and say that's not fair, [unintelligible]. If you say I love that, sorry, it's getting repealed. The actual proposed ordinance starts on page 7 of the noise ordinance. The issue that Mr. Hilbert is bringing up is towards the bottom of the page. It's number three. It's the definition of daytime hours. And, originally the sound control ordinance work group had proposed making daytime and nighttime more in tune with what the reality of what daytime and nighttime are. As we look at ordinances from around the state and around the country, we discovered that nighttime in most jurisdictions starts somewhere between nine and 11. At the end of the day the work group proposed 7 AM to 9 PM local time as the definition of daytime; and 9 PM to 7 AM as the definition of nighttime. This amendment changes the daytime hours from 7 AM to 9 PM to 7 AM to 10 PM. A one hour difference. And should do the same for nighttime. Yes. Number 16, which is on page 9. That is the amendment that is being made to this, or is being proposed. GRAZIANO: Thank you, Mr. Samuels. And, Mr. Hilbert, you would like to have a discussion on that amendment.
27 HILBERT: Mr. Samuels indicated that the range has been from 9 to 11. I would argue that as the capital of one of the larger municipalities in the Commonwealth that we need to put ours at the backend of that range. We are not a sleepy village and people are going to make noise and I am very concerned that we are going to get caught again in court about something that is very onerous. We need to be going after, as I said [unintelligible], the most egregious violators. We cannot shield every citizen from the city from every inconvenient noise. And so I strongly urge my colleagues to push this back to 11. And I do apologize to the patron for not bringing this up sooner. GRAZIANO: Mr. Samuels. SAMUELS: Just to give you all an idea, the volumes at which we are talking right now, in your bedroom at 2 AM at night, would not violate the noise ordinance, coming from outside the house. In other words there would be a much louder noise outside your house. Inside your house this amount of noise you're hearing over the speakers right now would not be a violation despite the fact that it's pretty safe to say this is loud enough to wake someone from their sleep. I think 10 o'clock is fair. GRAZIANO: Mr. Samuels, may I ask a question? If I were on my back deck? SAMUELS: It would not be a violation. GRAZIANO: So it's only inside my house. Not on my property. SAMUELS: Well it... Inside your house... I'm speaking at around 55 dB right now. GRAZIANO: But I'm saying if I, if this noise level, I could hear this on my back deck. SAMUELS: It would not be a violation because 65 at night is the level for outside [unintelligible]. GRAZIANO: Okay SAMUELS: At 10 o'clock, I think people are getting ready for bed, if not in bed. People with children who live throughout the city in all areas of the city. I think it's fair to give the working guy a break here and... I think it's appropriate to keep it at 10 instead of 11. And I'll leave it at that. GRAZIANO: Ms. Robertson. ROBERTSON: Mr. Samuels, I've seen a lot of this underground work that's been done and research that has been done to get to the point of putting this paper in. I apologize because at the last public safety
28 meeting, Ms. Trammell, I had to leave early because I had another commitment. And so, I missed a lot of the comments and discussion in regards to this paper. But, since that time I was part of a meeting with Mr. Samuels and the Commonwealth attorney. And I've had a lot of e‐mails from people [unintelligible], more specifically as it relates to this as well as just the general public understanding of... You know, I don't know what a [unintelligible] decimeter sounds like. I don't know 65. So, the people are confused as to do they have a sense of sound as to what that really sounds like as it relates to what we are voting on when we are moving forward. When I did meet with Mr. Samuels and the Commonwealth attorney, there were some recommendations that were made that suggested some significant changes to this paper, which I had not reviewed the amendments in detail to make sure that what... I guess my question is this, this paper will come back to public safety or is it moving forward? GRAZIANO: Public safety recommended that it go forward to council. Mr. Samuels is amending it, which, so now it would go forward to council in two weeks unless it gets re‐referred to committee. I think this is an important paper of great significance. I'm wondering if this is a paper that we would want to discuss at organizational development for about half an hour just so everybody has a good handle. So I think... We are continuing it anyway. So it's not going to hold it up. And I think everybody would like to get a good handle on exactly what this paper does. GRAZIANO: Mr. Jewell. JEWELL: I have to concur with Mr. Hilbert. This... We live in the city. Number one. And in light of the fact that we had to eat the last ordinance we passed, I think the safe bet suggests that we go with the least restrictive ordinance. Number one. And number two, 11 o'clock is not that ungodly an hour. [unintelligible]. For some reason I thought we sent this with no recommendation to the Council. That has not been mentioned. SAMUELS: We did send it without a recommendation. JEWELL: Moved forward to full counsel with no recommendation. GRAZIANO: Correct. JEWELL: and so will take it up on organizational, fine. Hopefully we can get something [unintelligible]. GRAZIANO: Mr. Samuels, good with that? SAMUELS: I have no objection to it. I don't think that changing the hour of the day is going to be a constitutional problem. Governments are allowed to regulate sound and in order to do so they are given power
29 through the Constitution to do that. But there is three different levels of scrutiny. This ordinance provides for the lowest level in a court case for scrutiny. The highest being strict scrutiny, which is what the former ordinance did because it exempted religious organizations. This organization... This ordinance does not make that exemption and therefore it does not fall under the strict scrutiny category. It falls under the lowest level of scrutiny the court can give [unintelligible]. JEWELL: ... SAMUELS: ... Between 10 and 11. Jurisdictions are allowed to place reasonable restrictions on time and manner for sound and noise. And so setting the time is constitutional regardless of when we set it. That's not going to be an issue [unintelligible]. GRAZIANO: Thank you Mr. Samuels. Mr. Jewell. JEWELL: Just a real quick retort. An old colleague of ours, Mr. Richardson, gave me a proposition that just ticked me off like you would not believe. He said "look, man; you want to be right or you want to be happy?" That's the most Machiavellian choice I think I've ever heard in my life. But it has relevance here in that, Mr. Samuels, you might be 100% right, but to avoid any prospect of getting this overturned again by somebody's Supreme Court, the least restrictive approach we can take makes sense. And if we have to tighten it up later, so be it. SAMUELS: If that's the case the Virginia state code does allow to create a civil penalty. You can trash this entire ordinance and create a civil penalty. [unintelligible]. If you're looking for the least restrictive, that would be the option. GRAZIANO: I think, Mr. Samuels, I think everybody. And I forgot Ms. Trammell. I think that everybody... I'll just speak for myself. I know that you did a lot of hard legwork on this. I think that everybody has concerns about noise and hopefully we can hammer some of these issues out and move forward or make changes; whatever we have to do. But I want to thank you in advance because I know you spent hours and hours of research on this paper. SAMUELS: If council members like this ordinance, I'm confident it will pass. If they don't like it, each and every one of us has within our authority the ability to propose amendments to it. Everyone can make recommendations. Change the decibel levels. Times. Create a whole new ordinance. The options are endless. I can tell you exactly what 80 noise ordinances around the nation have in them. College towns. State capitals. Large cities. Small cities. I can tell you different types of noise ordinances from ambient level plus X number of decibels above the violation to a plainly audible standard to even the ones that we have that are just decibel levels that encompass the entire city. They're all out there and I [unintelligible].
30 GRAZIANO: Thank you Mr. Samuels. Ms. Trammell, you have a comment? TRAMMELL: Charles, I also would like to thank you for all the hard work that you did on this noise ordinance. I know that in our eighth district that we get a lot of calls especially on weekends about the loud noises. Now we get calls about three wheelers and four wheelers going up and down the street. No mufflers and all that. So people are asking is there a law against them? Do they have to have a license? And that noise... I mean, you hear two of them at time going up and down the street. [unintelligible]. And going up and down railroad tracks. So, I know that I'm going to talk to the captain about that too. But, it's kind of like, if the police comes out, for the first time, they warn them. If it's daytime, it's different... They use a different decibel for the daytime and a different one for the night. SAMUELS: It's also for inside and outside the house. TRAMMELL: That's something I just got confused on. You said something about inside the house. [unintelligible]. I get calls, people yelling and screaming out of the street [unintelligible]. SAMUELS: But are the people who are complaining inside their homes complaining about it, or are they outside on the street complaining about the noises outside on the street? My experience has been that people who are asleep in their beds are the ones complaining. It's not the people outside on the street. TRAMMELL: You know, sometimes when like myself four o'clock in the morning, you know, I'm trying to go to sleep and I'm hearing, you know,[unintelligible] and the person says to me, Ms. Trammell, when they [unintelligible] up and down the street, that becomes your problem, not my problem. I'm like, okay, there's 50 cars up and down the street. They're coming out. They are hooting and hollering, drinking, throwing beer bottles here and there, and getting in their cars turning up their stereos. So, that's not fair to us and I'm going to ask Mr. Samuels about that on Monday. Who's problem is that now, once they leave your establishment and come out in the street. SAMUELS: That's covered in this ordinance. TRAMMELL: Thank you. GRAZIANO: Okay, and I would ask everyone to look at this ordinance. Look at the things you like about it. Look at the questions that you have so when we have a discussion about it next week we've got a good frame of reference as to where you want to go on this, because this is.... All of our ordinances are most important but this ordinance is most complicated.
31 HILBERT: I thought that we had a discussion in public safety, and I'll take responsibility for not following up on this, but section 38 ‐ 37.D, which is on page 11, dealing with violations of the article. The person operating or controlling the source of the sound shall be guilty of the violation caused by that source. And I thought we had a discussion about city workers that were directed to be somewhere to do some work, and my concern that they will be the ones charged under the ordinance that is now existing. I thought about, or I threw out at the meeting, exemption for the city for that purpose. And then, over the weekend, I get an e‐mail from a constituent complaining about work after midnight. So, you know, are we going to... I would suggest that we could possibly leave this in here but have internal administrative sanctions for city employees and/or their supervisors who violate this. And maybe that's the way to handle that versus, you know, somebody saying well I'm not here, you know, doing jack‐hammering at 11 and somebody else saying well, I get told to be here, and that person saying that my supervisor. And, you know, pretty soon we're going to be charging Mr. Samuels, excuse me, Mr. Marshall and or the mayor of a violation of this. I'm concerned about that. GRAZIANO: And I think that there are some issues that public works brought up at public safety that need to be brought up again and looked at in terms of how [unintelligible] those problems that we have. HILBERT: And those are the only two I can recall. The times. And then this exemption or however we can handle this for city employees. If anybody recalls any others... Thank you. And I again want to thank my colleague, Mr. Samuels. I appreciate that I'm sitting next to him for the next few hours. =========================================================== Excerpts from Organizational Dev. Committee meeting. July 5, 2011 Ordinance No. 2011‐119. GRAZIANO: Charles, did you want to talk a little bit about the noise ordinance? SAMUELS: It's coming. I believe there's a copy of it here. 2001‐119 [sic]. I actually wasn't planning on talking about it tonight I had thought that we were just, well, here goes. The changes aren't too many. I had an opportunity to talk with a lot of people and ask people to continue to send stuff in to me. If you guys look at page 7. The first several pages are what is being repealed. Page 7 is where the new stuff starts. If you look at sub paragraph 3 in parenthesis entitled daytime hours, I've changed that again now to read 11 o'clock PM...at the request of... frankly, business owners who are worried about their nighttime bar business. So. Seemed reasonable. We changed that, also, at the request of the city decibels, we made some changes that are not in here but will
32 be presented as an amendment on, commonwealth's decibels, excuse me, that will be presented next Monday, or introduced next Monday. Nothing fancy. Fireworks before 11 o'clock. Make sure that we've got the Squirrels covered. That sort of thing. Noise from motor vehicles like ice cream trucks. I can't remember if we.... STAFF: [unintelligible] I haven't gotten it. SAMUELS: Okay. STAFF: [unintelligible] first two, the 11 o'clock and the fireworks... SAMUELS: The 11 o'clock and the fireworks display, then, are the two that are going to be introduced next Monday to add to it. Hardest thing to get people to remember is that we are not measuring the noise from the source but rather where it's being heard. So, while I'm currently talking at around 65 decibels, it is not a violation. If outside of this room and down the hall, my property again, and I was able to get up to 75 decibels by screaming in here, then it would be a violation on the outside my house. On the inside it would, uh, be 65 decibels during the day, 55 at night. 55 is a conversation. If you think about it along these lines: you and I may have no problem chatting in our living room over a cup of coffee about something, but if that same volume of noise were coming from outside into your house and disturbing you, that would be a big problem. Same thing at night. Or, you may have no problem sitting in bed discussing your day with your loved one. That's not a big deal. But, if somebody is screaming so loud outside that they're actually waking you up‐‐and I think that the volume of normal conversation is sufficient to wake somebody up; that's like an alarm clock‐‐then it seems reasonable to ask that person to quiet down outside. Doesn't mean you have to be quiet. Doesn't mean they even have to talk at the level of 55 decibels. They can still be substantially louder. But, by the time it gets through your walls and into your bedroom, it can't be that loud. That's basically where the noise ordinance is. We looked at over 80 ordinance. We dropped it down to 30 that we thought made sense. We've looked at capital cities, cities with large colleges in them, and other recommendations from around the world. The largest one that I looked at, I believe was Seattle Washington, which came in at just under...oh...it was just under 200 pages hundred‐‐150 some odd pages. We looked at not doing decibel levels exactly, but doing the ambient measurement of noise in the city and then adding 5 to 10 decibels above that, like some other places have done. The problem is, in even the loudest neighborhoods, the ambient levels are substantially lower than you'd expect. The lower Fan, which has a huge student population, the ambient noise levels at night are 40 decibels. JEWELL: What's "ambient"? SAMUELS: "Ambient" is just without a whole lot of action going on‐‐just a normal night in the neighborhood. At 40 decibels, that means if we
33 added 5 to 10 decibels on, it would be lower than a conversation and a violation. That seems a little extreme, because we're not trying to stop people from having fun and making noise. We're just trying to stop them from disturbing other people. We looked at a lot of different options to the decibel levels. The highest that we found, that I found, was in Austin, Texas, at 80 decibels. That's real loud. We looked at Boston, Massachusetts, which is 50 decibels. There was one, the lowest we found, was 45. 80 was the highest we found. Decibel levels, as you all know, you go up incrementally. It's a slope like a ski slope. It's not just a diagonal. 90 decibels is not twice as loud, but is multiple, multiple times louder than 45 decibels. Highest decibel level that...that will cause immediate permanent deafness or hearing loss is 196 decibels. That's the loudest... Excuse me, that's not true. 180. 196 is the loudest noise that can possible be made. And its loud. Federal regulations say that train horns have to be at 110 decibels. My baby can also scream at 110 decibels. I went ahead and measured that at the source. We then measured it from a distance of several feet. We also measured it from uh, with an open screen window. I was outside on the sidewalk. My wife stood at the window with the...just the screen down and held him and it didn't even register at 55. It didn't register it 50 decibels. So distance does make a difference as does what it's going through. I know a mesh screen isn't exactly insulation, but even that can substantially slow something down. JEWELL: Does ambient level temper loud bursts? SAMUELS: Ambient levels do not. It's additional on top of it. And, , uh, the other thing about ambient levels is that it would've required planning or the police or some department here in the city to actually have to go out and measure the entire city, block by block, neighborhood by neighborhood, in some form to figure out what's normal and ambient for that level. That's crazy. Got a lot of other stuff that I didn't include in here but I think what you guys are going to find is that this one meets all the requirements of the Supreme Court cases that have dealt with noise and free speech. The way we have written it we believe it requires the lowest level of scrutiny by the Supreme Court, which means it gives the most freedom of speech under the First Amendment while still being able to let people enjoy...uh...their homes and their property. GRAZIANO: And, I would say if you would all read this, look at it. If you've got a little heartburn over it, if you discuss it with Charles before Monday, if he needs to get amendments, if he agrees with you and he wants to amend it. He wants this to pass the end of July. SAMUELS: Yeah I'm going to call for, I'm going to ask for it be voted on in the last week in July. So. GRAZIANO: I think Reva had her hand up.
34 TRAMMELL: Is this 11 o'clock weekdays or just 11 o'clock on weekends? SAMUELS: Every single day of the week. TRAMMELL: So they...so they could...even in the neighborhood they could be playing this music up until 11 o'clock at night? SAMUELS: As long as it doesn't violate the daytime volume standards they can. And if it's violating the decibel limit, they can't. TRAMMELL: Did you see that thing in the paper about Prince George County. They were having so much trouble with the decibel that they got rid of it and now it's just by calling the police? SAMUELS: Um Hum. But, the Commonwealth's attorney said he was not interested ... well... I don't want to put words in his mouth. The feeling I got from the Commonwealth attorney was that he wasn't interested in the plainly audible. He thought that a decibel level was going to be easier to enforce and was much more willing to prosecute under a decibel level. Most people are switching over to decibel levels instead of plainly audible. TRAMMELL: Yeah, but Prince George had it and got rid of it. SAMUELS: Every jurisdiction is different. TRAMMELL: We're going to have...we're going to just have so much, so many problems because people don't...they fully don't understand it. And now we're changing it from nine o'clock at night to 11 o'clock at night and you have to realize... SAMUELS: For the last 20 years it's been 11 o'clock at night as the nighttime. It's just that nobody really worried too much about noise. People are only really concerned about this, I think, or are really paying attention to it because it's come up. You know, the old ordinance work great for many, many years. In 2008, 5800 calls for service, I think. No, I'm sorry, 8,500 calls for service regarding noise. The police issued just under 300, or just over 300 citations. Usually, you walk up, a knock on the door is sufficient to keep the noise down. If it's not, and they are issued a summons, and the judge convicts them, the judge has the authority on the first offense to give them up to a $250 fine. That's enough to hurt. But the judge doesn't have to. He can give him a five dollar fine, he can give them a one dollar fine. He can give him anywhere between zero to 250. Second offense within a year comes with a up to $500 fine. Third offense within a year, you're looking at possible jail time TRAMMELL: The problem is they can play this music... I'm just taking, for instance, this trailer park over the weekend. They were playing music so loud the people were calling me. I said there's not a noise ordinance.
35 When are we going to have one? I said "pretty soon." Well, what's the time going to be? I said "right now, nine o'clock." And now I have to tell them it's 11 o'clock. What about when the children go to school, people got to get up at five o'clock in the morning and go to work and they are listening to this all night long. You know how close trailers are. SAMUELS: I do. And that's why it can't be louder than 55 decibels inside somebody else's trailer after 11 o'clock. Before 11 o'clock it can be 65 decibels. TRAMMELL: So that's loud. SAMUELS: It's conversational level. GRAZIANO: Bruce, you had... TYLER: Yeah, I... You know, Charles, its...it's interesting to know that we had participation of the Commonwealth attorney all the way through. Why did he wait 'til the last minute to come up with changes after we went [unintelligible] documents deep into this. What, what happened? SAMUELS: That's a great question to ask him. TYLER: Did...did...did Tracy give it to someone else? SAMUELS: I mean, we had a representative of the Commonwealth attorney's office, the Deputy Commonwealth's attorney, at all the meetings. TYLER: Yeah. SAMUELS: But, I recently met with Alan and Mike Herring and Mike had some, Mr. Herring had some concerns about it and so I talked to him and asked that he put it in writing. And he did. And I adopted some of them. I did not adopt other ones. What I'm recommending certain ones. I'm not recommending others. GRAZIANO: I think that, Charles, I would think that we would certainly want the Commonwealth attorney to, since they are the prosecutors, to be on board with this. SAMUELS: I couldn't agree with you more. TYLER: Does he know which ones you...you...you have said we're willing to accept and which ones we're not? SAMUELS: I don't know if he does or not. TYLER: Could you ask that?
36 GRAZIANO: Yeah. SAMUELS: [unintelligible] him an e‐mail back. TYLER: Alright. GRAZIANO: Okay. SAMUELS: I will do it, but I haven't done it yet. GRAZIANO: Alright, Marty, you had... JEWELL: Well, yeah, I just need to say that the amount of tedium that's has gone into pulling this thing together...my hat's off to you guys. [unintelligible] But, again, bottom line comes down to...to Riva's point that, uh, you need something that's got teeth. And if unless we have Commonwealth's attorney going to prosecute, teeth go out the window. And this former Commonwealth attorney behind me will agree I believe, that he is the sole determiner as to who to prosecute, and who not. SAMUELS: No, sir. No, sir. No, sir. No, sir. JEWELL: Huh? SAMUELS: And David Hicks, please correct me if I'm wrong. You guys do not prosecute or stand up there disputing a ticket. In your time, did you ever have any Commonwealth attorney prosecute a noise ordinance violation? Hicks: I can't say that it hasn't happened. I don't, I cannot recall. The law is that the commonwealth attorney shall prosecute felonies, may prosecute misdemeanors. What happens and which misdemeanors the Commonwealth's attorney choosing to or chooses not to is as different as there are 120 Commonwealth attorney's. [Multiple speakers] JEWELL: Does that negate my comment? That on misdemeanors he determines who to prosecute, who not, however, how way? [Multiple speakers] GRAZIANO: I was I going to say, let's bring this back to this ordinance. I think Mr. Hilbert... JEWELL: Well this is about that ordinance Madame President. GRAZIANO: Yes sir.
37 JEWELL: The fact is unless he's willing to prosecute, we've got nothing. SAMUELS: No, that's not true though. Because a person gets a summons or issues an arrest warrant. They will have a day in court. They'll either be guilty, not guilty, an Alford plea, or no contest. Whether or not the prosecution is there, there will be the person that issued the citation saying why they did it. There will be the person who received a citation saying why they're is guilty of it or not guilty of it. They may or may not have a defense attorney with him but it does not negate the prosecution. It negates the Commonwealth attorney's interest in adding his voice to the prosecution. GRAZIANO: Mr. Hilbert HILBERT: Yes. Thank you Madame President. GRAZIANO: We're going to spend five more minutes on this because this is going to be amended anyway. HILBERT: I'm going to...I going to try and be quick. Ah, let's see, well the word is definitely out there on the street that we don't have a noise ordinance because people being pretty flagrant about it. Ah, so we need to do this quickly. Ah, and I'd like to see this, painful here, but let's, the four, the class four misdemeanor does not allow anymore than a $250 fine? Is that correct? SAMUELS: For a first offense. That's right. HILBERT: For a first offense. Okay. Well, if we wanted to go up to $500 you wouldn't hurt my feelings on this. But... SAMUELS: We talked at great length about that in the work group and decided that so many folks were against any sort of criminal penalties for this that a fine for the first time around was reasonable. Everybody's going to makes mistakes. Maybe this is the night you made a mistake. But if it's a repeated violation, then you're looking at jail time. HILBERT: Okay. Alright that's good enough. Page, uh, 13, I believe. No, I'm sorry. 11. Under violations of the article, item D: any person operating or controlling a source of sound shall be guilty of the violation caused by that source. I think the example was given of city employees out there jack‐hammering or what have you and them saying well, I was directed by their supervisor to do this. I mean, I'm not sure that the...that the person out there on the street should be the one to bear the burden for that. And I was hoping that we could exempt the city from this but ask for regulations, whether it would be some disciplinary process by the chief administrative officer. SAMUELS: Whenever you exempt yourself, you open up a Pandora's box. I've asked the administration to provide me with what they think
38 would be reasonable to address work‐in‐street issues. They are doing this already under all work‐in‐street street and basic construction work during the day are already exempt. There is some special issues about nighttime work that could be addressed. Um, you know, DPW has a question about trash. Now I asked them plain and simple. Give it to me in writing and we can do something with it. And, as of today I haven't got anything in writing. So, I mean it's up to the administration what they want to do and when they want to do it. This can always be amended if they realize they can't live under this, but I don't think we should...I don't think we should weakened this and add a level of scrutiny to it in court that we don't need to have by exempting the city. GRAZIANO: But...but you would if public works or DPU has an issue they would get that issued to you by tomorrow? SAMUELS: By tomorrow. Because tomorrow noon is when it's all done. GRAZIANO: And talk to you about it then, it's possible to amended. HILBERT: And they didn't say anything specific, I just, when we were discussing this in the public safety committee meeting that's when this came up. SAMUELS: If they give me something in time to review it I'll be happy to, but the deadline is fast approaching. If they don't, there is no law says we can amend this to address the public work and public utility issues come September when we get back. HILBERT: Okay. SAMUELS: But, right now I'm on a tight deadline to make any other changes to this. HILBERT: Great, and I appreciate ... [Multiple speakers] GRAZIANO: What time, what time, Mr. Samuels, I'm sorry, what time is your deadline tomorrow? SAMUELS: Well, it has to be in the city attorney's office by noon. I've got court in the morning. So basically tonight would be when they would need to get it to me, but, you know. I asked them to get it to me at public safety. I know I talked to David Hicks. Talk to three other members of the administration. I... I can't put their hand to paper. GRAZIANO: Mr. Hilbert. HILBERT: And I still have one last question here. I spoke with Mr. Parnell the chief administrative officer for, excuse me, the chief operating officer for the Richmond Flying Squirrels. What he has said to me is that
39 major league baseball would not.... He said they would go ballistic, I think was his term, if they delayed the game in order to shoot the fireworks off should we say 10 o'clock is it. And so what their solution is, if it goes past a certain hour, that they would...they would lessen the noise generated by the fireworks. In other words they would downgrade all of the fireworks. Is that...and you have to be on your own property in order to even have standing on this... SAMUELS: Um hum. HILBERT: or inside the dwelling that you have leased in multi‐ family unit. So...I mean it's not like someone is going to be standing out there on the sidewalk saying, you know, I'm offended by this because they violated the noise ordinance. You have to be on your own property or renting in order to file a complaint about this. So, I mean that's a solution. Now maybe, you know, they need to judge, you know, have somebody standing in somebody's yard or something to see how loud they are and maybe they'll need to tone them down but that was the response I got when I asked them regardless of whether the game was over if they just started setting off the fireworks at a time certain and he told me that they couldn't really do that. So, that's the solution they've come up with. SAMUELS: Good. GRAZIANO: And back to DPU DPW. Do you have court tomorrow afternoon? SAMUELS: No, but the city attorney's deadline is noon and I have to have time to review it first before I can agree or disagree to the amendments. GRAZIANO: If... Would it be possible, if there were some amendments, if you got them Thursday morning, that would work? STAFF: I'll do my best, but... SAMUELS: I don't know if I'm going to make exceptions. We worked on this for 10 months. GRAZIANO: I understand. STAFF: Ultimately I've got to take my direction about what goes into the [unintelligible]. GRAZIANO: Right, I would just hate to see us...I think everybody wants this paper to move forward. And I think everybody wants this paper to move forward before the end of July. But I would hate to put us in a position that we move it forward and it has serious implications on some of the work that has to be done in the city.
40 SAMUELS: Well, I don't know. I mean... GRAZIANO: I'm just saying... SAMUELS: There's a certain number of hours in every day. GRAZIANO: I would like to see this paper move forward and I...I would like to see it move forward without us at the last minute finding out, and having a lot of people on council concur, that it can't move forward because of the situation it creates. SAMUELS: If that's the case the council can vote it down. I'm asking for a vote at the last hearing, the last meeting in July. GRAZIANO: All right that's it on the noise ordinance. Now let's go to... Maybe we'll get some phone calls before noon. SAMUELS: Phone calls aren't going to cut it. =========================================================== Excerpts from City Council Formal meeting. July 25, 2011 Ordinance No. 2011‐119. SAMUELS: "In April of last year I began working, meeting with a work group of a vast array of folks with different expertise to revise the city's noise ordinance. As you all recall in 2009 an issue down at Virginia Beach eventually reached the Virginia Supreme Court and the standard that all, almost all Virginia jurisdictions use of "unreasonably loud" was held unconstitutional because it didn't give people a fair warning about what was illegal when it came to violating the noise ordinance. And so throughout the Commonwealth jurisdictions scrambled to come up with new noise ordinances. I put one forward here in town after about a nine month wait to see what else we could do and to let the appeals process work in the Tanner case. That unfortunately exempted church noise. It used a "plainly audible" standard. And there are several levels of scrutiny that the courts must use. And any time religion is involved a very strict standard must be used. And that ordinance was found to be unconstitutional because it promoted religion. Not a specific religion. Religion in general. It exempted church bells from the ordinance. So I got together a group of people. Included representatives from the local musicians union, the criminal defense bar Association, the Virginia municipal league, the city attorney's office, Councilman Bruce Tyler, the Commonwealth's attorney's office, VCU, the VCU police, the Richmond Police Department as well as their attorneys, the city's planning department, the Mayor' s Chief of Staff, the mayor's chief policy advisor. And I'm proud of the effort this work group put in over the last few months to help draft an ordinance. And I want to thank each of them for the countless meetings we held. So over the past 16 months we worked
41 on these issues. We addressed volume, First Amendment and other constitutional issues, and tried to use a reasonable common sense standard to draft a workable sound control ordinance for the city. One of the first things we did was look at other ordinances. We started off with a huge stack. Whittled it down to about 30 and then reviewed them to see what would, what other people were doing. Some examples of those include Seattle which has over a 100 page sound control ordinance. Austin Texas. Washington DC. Boston. Charlottesville. Stanton. Virginia Beach. Even Chincoteague. And I personally called the attorney who won the Tanner case and talked to him at length about what he saw as being advantageous and problematic in sound control ordinances. I also talked to a local criminal defense attorney who I knew had a specific take on it. We read articles, law review articles on sound control ordinances and the First Amendment. And we decided to start with the basic question ‐ what's the purpose of a sound control ordinance. The United States Supreme Court has held that government has a substantial interest in protecting its citizens from unlawful noise and that this interest is perhaps the greatest when the government seeks to protect the well‐being, the tranquility and privacy of their homes. We decided that our interest was best served by creating reasonable regulations on the volume of noise folks had to hear on their property and in their homes ‐ not the volume of the noise produced by any specific action. We looked at keeping the "plainly audible" standard which we had used and which numerous jurisdictions throughout the state, throughout the nation, used. In fact, New Jersey's model noise ordinances the states provide to localities uses an exclusive plainly audible standard. We discussed issues starting with whether or not we' d have an ambient level of noise plus some amount of noise over that as a violation or if we should use a straight line noise test of "X" number of decibels. We found there are some real issues with both but ended up deciding on a straight level of noise for some very obvious reasons. Number one, noise is different throughout the city. However, where people live there is certain levels that can wake you up at night. There are certain levels that can keep you up at night. And there are certain levels where you can no longer enjoy your own property. And while we could use an ambient level, it would end up being substantially lower than what we chose. Let me give you an example. A lot of areas use an ambient level of noise from different areas of town and then add 5 to 10 to 15 dB on top of that. Noise, or decibels, increase exponentially, which means that 5 dB, or 10 dB rather, is substantially louder than just 10 notches on the speaker system. In other words, going from 10 to 11 doesn't mean it's knocking it up one notch. And we also found that, for example, in the lower fan the ambient levels at night were 40 dB. Which means if we only went up 5 to 10 dB, we'd be at 45 to 50 dB at night. And we wanted to make sure that we weren't just silencing the city but that we were giving people a chance to enjoy their own homes. So we started off with a blanket system. After a lot of discussion, tests, we had an audiologist come in and present his thoughts on the matter, we decided that 55 dB at night in your own home was a reasonable level to hear. 65 dB at night on your property outside your home would be
42 reasonable. And then during the daytime it would be 75 dB outside on your property and 65 dB inside your own home. To give you an example, 55 to 65 dB is about a normal conversation. In other words, what I'm talking at right now amplified measures between 70 and 75 dB on a properly rated decibel meter. Now let me tell you a little something about the ones that you may have on your phones. I measured one of those. They vary wildly. I cannot, cannot discourage their use enough when comparing what noise you think would be acceptable. [Unintelligible] my normal conversation varied between 91 dB and 40 dB even though my conversation rate stayed the same just as it's doing now. So take great care when you look at the ones on your phones when deciding how you feel about that. Because of that we wanted to make sure that the police had decibel meters that were able to be introduced as evidence in a court of law. And, thankfully, the state has promulgated regulations on what localities can use as decibel meters. And we will be using those to my understanding. We also talked about... Well let me give you another example. We talked about decibel levels and what's reasonable and what's not. Austin Texas has, during the day, 80 dB is appropriate. We go 75 in residential areas. Boston Massachusetts at night, 50 dB. We have 55. There is a town in I believe Maine that does 40. But the vast majority around the Commonwealth of Virginia range between 55 and 75 dB. I believe Charlottesville is about 10 dB louder than ours. I believe Stanton is right along with ours. We also considered whether or not to [unintelligible] how loud you could be by what area of town you were in. And at first what we looked at was zoning. Commercial, residential, industrial. And while that legally passed muster we were concerned about the confusion that could cause when noise comes off of one area of town into another zoning area at an illegal level. And we decided that it made more sense because this was really purposefully aimed for the people of the city of Richmond, the residents of the city of Richmond that keeping it at a blanket level made more sense. It was also recommended that we consider exempting entertainment zones like Shockoe Bottom, portions of the fan, to allow for a greater noise levels especially at night in those areas. And while I think there are certainly a lot of good arguments for that the concern was that the Constitution may cause that to be more strictly scrutinized than zoning by commercial, residential or industrial. And so we also wanted, and we also wanted to make sure the police had a very clear idea about where they were standing and didn't have to carry maps around with them in addition to decibel meters. So we decided, again, to keep it at 65/75 during the day. Then we also had to talk about what kind of punishments. For the last probably 20 to 30 years it's been a class II misdemeanor punishable by a significant fine and up to six months in jail. The average punishment over the last 20 years has been a $25 fine. But there was always that floating out and around. We wanted to make sure that people, if they were convicted, were punished in an appropriate manner to be discouraged from doing this again without absolutely just slamming them with punishment. And so we created a graduated scale of punishment. It starts with a maximum fine of $250. And the judge only occasionally goes that goes that high.
43 But a maximum of $250 for first offense. $500 for the second offense within 12 months. And then finally the possibility of incarceration only after three offenses within 12 months. And we think that that does a good job of serving the public need. Now to give you an idea. It's not gonna say that judges in the city of Richmond won't still just issued $25 fines but it gives them leeway to increase pressure on someone who is an habitual violator of this ordinance. A word about punishment and violations. In 2008 there was over 8500 calls for noise violations in the city. There were 300, approximately 300 citations issued. That's because the police are reasonable folks and they don't just go busting in, knocking down doors and arresting folks for noise ordinance violations. Instead, you often have a knock on the door from the police officer. 'Ladies and gentlemen there's been a complaint about the noise. We're asking if you'd turn it down.' We believe this will continue. In our discussions with the police it is our understanding. We also wanted to make sure there were reasonable exemptions to this list. Things like lawn care, construction work, emergency work, those kinds of things. Garbage pickup during the daytime hours. Those things we wanted to make sure were exempted as well as emergency vehicles. Train noise. Other federally exempted work and... Those sorts of things. I personally believe this returns to police officers tool chest a necessary tool of law enforcement. I also believe, more importantly, it provides the city relief, the city residents relief when the neighborly relations have deteriorated or come to such a level that going over to your neighbor and just asking them to turn down the music is ignored or worse, violence is threatened against you for simply wanting to be able to get a good night's sleep. I know that sounds crazy that someone would do that but unfortunately that's the kind of stories I hear. I know no ordinance is perfect. If there are amendments that will be made or needs to be made I'm happy to work with the public, the administration, other city Council members, to make this an even better ordinance. We have gone too long without one. And tonight I'm asking my colleagues to vote in favor of this ordinance so we can get back on track in the city. Thank you." [Public hearing ‐ support] (Speaker 1. Strongly supportive. In favor of development and entertainment.) (Speaker 2. Describe noise in Highland Park at six in the morning. Church buses on Sunday blow horns. School bus wakes up neighborhood. Something has to be done about the noise. Youth will be deaf before 30.) (Speaker 3. Appreciates taking downtown living into consideration.) (Speaker 4. Considered leaving the city because of being kept awake. A good night's sleep is not negotiable.)
44 (Speaker 5. Cities are struggling to deal with increasing noise. The city needs a sound ordinance.) [Public hearing ‐ opposed] (Speaker 1.) [Discussion.] Hilbert. (Samuels did a bang up job. Glad that counsel has softened up. Tomorrow the city will have a noise ordinance. Blatant narcissistic behavior towards one's neighbor will not be tolerated. Purposeful defiant noise needs to be turned down tomorrow.) JEWELL: (Said he is not used to being ruled unconstitutional. If this ordinance is not right Council will try again. This is an important issue. TRAMMELL: (People are sick and tired of noise.) TYLER: (We've spent 12 months on this.) ROBERTSON: (Had concerns about the ordinance because of calls in Shockoe Bottom. There is a significant difference in the volume of noise just knowing the ordinance is in process. Night clubbers still have concerns. Ordinance is long overdue.) JEWELL: (Asked where the noise would be measured.) SAMUELS: There was a lot of recommendations, comments, concerns about that and at the end of the day we realize that if we make it a distance from a source, in most situations that just makes the noise illegal at a certain decibel level at a certain distance. It doesn't actually show that there's any problem with the noise. But if you can hear me talking this loud in your bedroom at 2 AM, you've got a problem. [Interjection] We wanted to make the offensiveness, the bothersome illegal ‐ not the noise itself. We could say that bars can't be more than 75 dB at 15 feet from their property line. But if you did that.... I mean, shucks, most city streets are at least 40 feet wide. And so the only people you could possibly have offending is your next‐door neighbor if you live in a mixed use area or somebody driving by in a car. That's not the point of this ordinance. The point of the ordinance [unintelligible]. And that's exactly where it's measured from where the noise offends ‐ not just from an arbitrary point. JEWELL: (Asked if the focus is on residential areas.) SAMUELS: Every business zoning with a few exceptions in the city for years and years now, there is a rule that says that you can't have certain types of noise going past your property line. So I didn't think we should try to mess with all the zoning codes if we're really worried about
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45 residents and not the businesses at this point. The businesses have their rules already. [Ordinance Adopted. 9/0]
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